Status of PPL storm outage records mulled by court

The case involving PPL stems from a freak October 2011 snowstorm that knocked out power to 388,000 customers in PPL’s service territory, leaving some without electricity for several days.

The case involving PPL stems from a freak October 2011 snowstorm that knocked out power to 388,000 customers in PPL’s service territory, leaving some without electricity for several days. (MICHAEL KUBEL, MORNING CALL FILE PHOTO)

PHILADELPHIA — A panel of three Commonwealth Court judges on Monday probed attorneys on both sides of the question of whether documents produced during the Pennsylvania Public Utility Commission's investigation into PPL Utilities' response to a freak October 2011 snowstorm should be made public.

PPL and the PUC are trying to prevent disclosure of an anonymous tip letter and other documents that led to a $60,000 settlement in which the Allentown-based utility admitted that a crew was directed to restore power to a neighborhood that was not next on its priority list.

A media coalition including The Morning Call and Times Leader of Wilkes-Barre, both of which requested documents related to the settlement, has intervened in the case seeking to have the investigative papers made public.

Based on questions from the bench, the court's decision could hinge on what the judges decide lawmakers meant when they wrote the state's utility code to include a passage that says "any documents relied upon by the commission in reaching its determination" in making settlements must be made public.

PPL and the PUC argue that the tip letter and investigative documents related to the settlement are not public because they were gathered and produced by agency investigators, but were not relied on by the agency's five-member board of commissioners in approving the settlement.

"The Bureau of Investigations and Enforcement has the ability to conduct investigations, but it does not have the power to take any official action under the Sunshine Act," said David B. MacGregor, attorney for PPL Utilities.

Media coalition attorney Craig J. Staudenmaier said the state utilities code uses the word "commission" on purpose to apply to the documents used in the investigation that produced the settlement, not simply official actions taken by the board of commissioners.

"Our view is based on the actual wording of the statute," Staudenmaier said. "What the plaintiffs are trying to do is rewrite the statute."

Judge Kevin Brobson pressed attorneys for PPL and the PUC on their contention that the disclosure provision applies only to documents made a part of the record of official board of commissioners' decisions, which are public by default.

"Don't you have to concede the language is much broader than that?" he asked. "If all this section is related to is the docket, why did they even make it?"

But Brobson and Senior Judge James Gardner Colins also pressed Staudenmaier on whether disclosure of the anonymous tip letter would create a "chilling effect" that would prevent future tipsters from providing information to the commission.

Staudenmaier said any identifying information could be stripped from the tip letter.

"The statute itself recognizes the ability to redact information that could lead to revealing the identity of the tipster," he said.

With briefs submitted and arguments completed, the three-judge panel will issue a ruling on how much of the investigative record should be made public under state law.

The case has its roots in a freak October 2011 snowstorm that knocked out power to 388,000 customers in PPL's service territory, leaving some without electricity for several days as the company scrambled to repair downed power lines.

An anonymous tipster contacted the PUC after the outage, alleging that crews were directed to restore power to a neighborhood that was not next in line under the utility's priority system, which puts a premium on restoring power to circuits that serve public safety buildings and larger neighborhoods.

The PUC investigated and found that a PPL crew had been improperly diverted. PPL agreed to pay a $60,000 fine to settle the matter, promising to retrain personnel and implement safeguards that would prevent similar incidents in the future.

The settlement did not disclose the reason the crews were diverted, where they were diverted or who ordered the crew to be redirected. It did say that about 1,300 customers went without power four hours longer than they would have if the crew had not been diverted.

PPL has said it regrets the mistake and that a misunderstanding led a lower-level supervisor to make the wrong assignment for one repair crew. PPL says it has taken steps to prevent such a problem from happening again, but refused to say where the crews were diverted or what led to the misunderstanding.

Reporters for The Morning Call and Times Leader requested documents related to the settlement. The Public Utility Commission denied the requests.

Both newspapers appealed to the Pennsylvania Office of Open Records, which ruled that the PUC should disclose the documents, with some redaction allowed. The PUC appealed the ruling to Commonwealth Court and was joined by PPL Utilities.

In refusing to disclose the documents, the PUC cited the Open Records Act's exception allowing documents involving "pre-decisional deliberations" and noncriminal investigations to be kept under wraps.

The terms of the settlement with PPL also included keeping the documents out of the public domain, the PUC said.

A coalition of 12 media organizations from around Pennsylvania, including The Morning Call and Times-Leader, formed in May to contest the appeal. In its filing, the coalition said disclosure of the documents is critical to maintaining public confidence in the PUC's ability to "equitably and efficiently" carry out its duties.

The coalition argued that the state's Public Utility Code includes specific language that requires disclosure of documents relied on by the commission to reach settlements with public utilities. The coalition says the code specifically notes that those disclosure requirements trump any exceptions allowed under the state's Right-to-Know Law.